Full Judgment Text
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PETITIONER:
ASHOK KUMAR BINNY AND HANSRAJ
Vs.
RESPONDENT:
STATE OF JAMMU & KASHMIR & OTHERS
DATE OF JUDGMENT10/12/1981
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
VENKATARAMIAH, E.S. (J)
CITATION:
1982 AIR 978 1982 SCR (2) 142
1982 SCC (1) 174 1981 SCALE (3)1890
ACT:
Jammu and Kashmir Public Safety Act 1978 Section 16(1)
scope of.
HEADNOTE:
The petitioners were detained under the Jammu & Kashmir
Public Safety Act 1978. Their cases were referred to the
Advisory Board, which did not submit its report yet to the
Government, although eight weeks from the date of detention
had already expired. It was argued that there was a
violation of sub section (1) of Section 16 of the Public
Safety Act and therefore, further detention of the
Petitioners was invalid.
Accepting the petitions it was,
^
HELD: (1) The petitioners enjoy a fundamental right
under Article 21 of the Constitution not to be deprived of
their personal liberty, except according to procedure
established by law. In cases where a Government resorts to
preventive detention, Clauses (4) to (7) of Article 22
prescribe the conditions relating to preventive detention. A
perusal of these Clauses will make it immediately apparent
that the constitution places the greatest emphasis on
severely limiting the period of preventive detention and
envisages time bound stages for the processing of a case as
it reaches its determination. The Jammu & Kashmir Public
Safety Act contains provisions which specify the successive
stages and also prescribe the period within which each stage
must be completed [143 H, 144 A-B]
2. It is clear that the period prescribed by sub-s (1)
of s. 16 of the Act for the submission of its report by the
Advisory Board has already expired. Sub-s. (1) of s. 16
provides that the Advisory Board, after considering the
material before it and such further material as it may deem
necessary and after hearing the person concerned, shall .
submit its report to the Government within eight weeks from
the date of detention.’ The obligation placed on the
Advisory Board to submit its report within the prescribed
period must be construed strictly in as much as the personal
liberty of a person is involved and having regard to the
emphasis which the Constitution has placed, and which
emphasis is reflected in the Act, on the necessity of
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expeditiously determining whether the detention of the
person concerned should be continued. [144 B-F]
143
Shri Mritunjoy Pramanik v. The State of West Bengal,
[1972] 2 S.C.C. 586, referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Writ Petition (Criminal) Nos.
8333 and 8365 of 1981.
(Under article 32 of the Constitution of India)
Bhim Singh and P.D. Sharma for the Petitioners.
Altaf Ahmad for the Respondent.
The Judgment of the Court was delivered by
PATHAK, J. The petitioners Ashok Kumar Binny and Hans
Raj have been detained by the Government of Jammu and
Kashmir under s. 8 of the Jammu & Kashmir Public Safety Act,
1978. They have filed these petitions for a writ in the
nature of habeas corpus directing their release.
The petitioner Hans Raj was detained on 17th August,
1981 while the petitioner Ashok Kumar Binny was detained on
1st October, 1981. It is pointed out that although their
cases have been referred to the Advisory Board, the Advisory
Board has not submitted its report yet to the Government,
and as eight weeks from the date of detention have expired
there has been a violation of sub-s. (1) of s. 16 of the
Public Safety Act. In the circumstances, it is urged, the
further detention of the petitioners is invalid. When these
petitions were called on for hearing, Mr. Altaf Ahmed,
appearing for the respondents, placed before us a wireless
communication received by him from the State Government
stating the Advisory Board was programmed to sit today and
instructing him to seek adjournment in these cases. We are
unable to grant the adjournment because it seems to us that
any proceeding now taken by the Advisory Board can be of no
consequence in supporting the further detention of the
petitioners.
The petitioners enjoy a fundamental right under Article
21 not to be deprived of their personal liberty except
according to
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procedure established by law. In cases where the Government
resorts to preventive detention, clauses (4) to (7) of
Article 22 prescribe the conditions relating to preventive
detention. A perusal of these clauses will make it
immediately apparent that the Constitution places the
greatest emphasis on severely limiting the period of
preventive detention and envisages time-bound stages for the
processing of a case as it reaches its determination. The
Jammu and Kashmir Public Safety Act contains provisions
which specify the successive stages and also prescribe the
period within which each stage must be completed. Section 15
declares that after a detention order has been made the
Government must, within four weeks from the date of the
detention order, place before, the Advisory Board the
grounds on which the order has been made, the representation
made by the person effected by the order, and where the
order has been made by an officer, also the report by such
officer. Thereafter, sub-s. (1) of s. 16 provides that the
Advisory Board, after considering the material before it and
such further material as it may deem necessary and after
hearing the person concerned, shall "submit its report to
the Government within eight weeks from the date of
detention". The obligation placed on the Advisory Board to
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submit its report within the prescribed period must be
construed strictly inasmuch as the personal liberty of a
person is involved and having regard to the emphasis which
the Constitution has placed, and which emphasis is reflected
in the Act, on the necessity of expeditiously determining
whether the detention of the person concerned should be
continued.
In the cases before us, it is clear that the period
prescribed by sub-s. (1) of s. 16 of the Act for the
submission of its report by the Advisory Board has already
expired. On that ground alone, it must be held that the
further detention of the two petitioners is invalid. We are
supported in this view by Shri Mritunjoy Pramanik v. The
State of West Bengal.
We allow these writ petitions and direct the State of
Jammu and Kashmir and other respondents to release the
petitioners
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Ashok Kumar Binny and Hans Raj forthwith. Immediately on
their release, the Chief Secretary, State of Jammu and
Kashmir, will intimate to this Court that their release has
been effected.
N.K.A. Petitions allowed.
146